412. "Copyright: The Right Result." The National Law Journal (January 20, 2003) p. A13

The U.S. Supreme Court ruled, 7 to 2, that a federal law extending copyrights to the life of the author plus 70 years (or to 95 years for corporations) is constitutional. The court got this one right.

The law was challenged by an odd coalition, which included the libertarian CATO Institute, the liberal American Library Association and the conservative Eagle Forum, as well as a number of constitutional law professors. Respecting the separation of powers, the Court found that Congress had every right to extend the copyright.

The Constitution gives Congress the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors, for a limited time, the exclusive right to their respective writings and discoveries. Indeed, Congress had already extended that limit several times.

The petitioner, Eric Eldred, was represented before the court by Lawrence Lessig, a renowned liberal law professor at Stanford University. His essential contention was that the copyright extension law undermines a major public good: creativity. According to Lessig, only about 2% of copyrighted products have any commercial value, but the new law extends the limitations on all of them.

As examples of the damage copyright laws cause in cyberspace, Lessig has pointed to web logs or “blogs,” diary-like sites that many people maintain on which they place film clips, pictures and music snips; others engage in parody. (He has admitted, though, that such usages could be exempted from the copyright law if fair us” was extended to cyberspace, allowing people unlimited use of such material, so long as the uses are not for gain.)

An incentive to create

Many of us in the academic community, and apparently, the Supreme Court, see this problem differently and maintain that the copyright law helps, rather than hinders, innovation by ensuring that those who create cultural materials are able to benefit from them. While some reject the notion that authors would be motivated by earnings to be collected seven decades after they expire, this ignores the fact that today a great deal of innovation is achieved by corporations that have longer horizons than individuals. Others posit that individual innovators are motivated by the joy of creativity, the prestige that follows and other such nonmaterialistic concerns. However, the greatest – from William Shakespeare to Isaac Stern – were motivated by the elementary desire to make money.

Actually there can be little doubt that the main danger today to creativity and innovation is not that the copyright time is too long, but that it is so often violated, a violation that has been made much easier by the Internet. Indeed, creators lose many billions of dollars each as year as a result of individuals and companies illegally copying millions of pages from books and periodicals and downloading music and videotapes, often after they have been sold for only a very brief period or even before the reached the market. Our system does not allow the Supreme Court and Congress to sit down and jointly work out a law. If this could be done, it would make sense for the court to favor shorter copy right periods from here on, if Congress agree to increase greatly the penalties on it violation.

On the domestic front, higher penalties could be readily applied. For instance, the law could shorten the copyright for many cultural products to, say, 50 years, but if illegal copies were made, the penalties could be based not on the specific damage caused (each one is often small), but on the level needed to deter such abuse. On the foreign front, the U.S. State Department would have to accord much higher weight to protection of our copyrighted products in international trade agreements and at the World Trade Organization.

Given that more and more of our export consists of information and symbolic items, if enforcement of the copyrights law continues to erode, than no matter what length the law provides on paper, our economy will be further damaged: Enforcement is the issue, not the long time copyrights must be honored.

Congress and the courts often seek a balance between individual rights and the public good. In the case at hand, the need to protect the individual’s right to the fruits of his or her labor, and a corporation’s investments in innovation, is strong. In contrast, public’s interest is vague and ephemeral. After all, one can make zillions of blogs and parodies out of the huge amount of non-copyrighted material that abounds in cyberspace and elsewhere.

The greatest danger to creativity, both to individuals and as a public good, is that cyberspace undermines the conditions that make creativity possible: well-enforced copyright laws. Hence, even people who are concerned with the public good favor ensuring that copyright is well-protected, even if it may not be necessary to keep it for 70 years beyond the life of the author.

Amitai Etzioni is a University Professor at The George Washington University and author of The Limits of Privacy.


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